Smt Neelamma vs United India Insurance Company ...
2022 Latest Caselaw 8706 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 14TH DAY OF JUNE 2022

                           BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                 MFA No.4702 OF 2020(MV)

BETWEEN:

1.     Smt. Neelamma,
       W/o Late Prabhakar K.L.,
       Aged about 49 years,
       No.59/2, Katamnallur,
       Virgonagar,
       Bangalore South,
       Bangalore-560 049.

2.     Divya P.,
       D/o Late. Prabhakar K.L.,
       W/o Prakash,
       Aged about 29 years,
       No.59/2, Katamnallur,
       Virgonagar,
       Bangalore South,
       Bangalore-560 049.                  ... Appellants

(By Sri.Lokesh Malavalli., Advocate)

AND:

1.     United India Insurance
       Company Limited,
       Regional Office,
       6th Floor, Krishi Bhavana,
       Nrupathunga Road,
       Hudson Circle,
       Bangalore-560001.
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2.   Shivakumar G.,
     S/o D. Gopalan,
     Aged about 46 years,
     No.46-A, Co-operative Colony,
     Gandhinagar, Mohanur Road,
     Namakkal, Tamil Nadu-637001.        ... Respondents

(By Sri.Jwalakumar, Advocate for R1:
Notice to R2 is dispensed with)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated: 07.02.2020
passed in MVC No.704/2019 on the file of the VIII
Additional Small Causes Judge and ACMM, Member-MACT,
(SCCH-5) Bengaluru, partly allowing the claim petition for
compensation and seeking enhancement of compensation.

      This MFA, coming on for orders, this day, this Court,
delivered the following:

                     JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the claimants being

aggrieved by the judgment dated 07.02.2020 passed

by the Motor Accident Claims Tribunal, Bengaluru

(SCCH-5) in MVC No.704/2019.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 04.04.2018 at about 6.30

a.m., the deceased K.L.Prabhakar was standing near

Katamnallur Gate, Bengaluru - Kolar NH-75 along

with his vehicle TVS Scooty bearing registration

No.KA-53/H-6138 for crossing the road. At that time,

a Goods Lorry bearing registration No.TN-88/A-4819

which was being driven in a rash and negligent

manner, dashed against the deceased. As a result of

the aforesaid accident, the deceased sustained

grievous injuries and succumbed to the injuries at the

spot.

3. The claimants filed a petition under Section

166 of the Act seeking compensation for the death of

the deceased along with interest.

4. On service of summons, the respondent

No.1 - Insurance Company appeared through counsel

and filed written statement in which the averments

made in the petition were denied. The age,

occupation and income of the deceased are denied. It

was pleaded that the petition itself is false and

frivolous in the eye of law. It was further pleaded that

the accident was due to the rash and negligent riding

of the motorcycle by the deceased himself. The driver

of the offending vehicle did not possess valid driving

licence as on the date of the accident. The liability is

subject to terms and conditions of the policy. It was

further pleaded that the quantum of compensation

claimed by the claimants is exorbitant. Hence, he

sought for dismissal of the petition.

The respondent No.2 did not appear before the

Tribunal inspite of service of notice and hence was

placed ex-parte.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to

prove their case, examined claimant No.1 as PW-1

and another witness as PW-2 and got exhibited

documents namely Ex.P1 to Ex.P15. On behalf of

respondents, neither any witness was examined nor

got exhibited documents. The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident

took place on account of rash and negligent driving of

the offending vehicle by its driver, as a result of

which, the deceased sustained injuries and succumbed

to the injuries. The Tribunal further held that the

claimants are entitled to a compensation of

Rs.6,45,000/- along with interest at the rate of 9%

p.a. and directed the Insurance Company to deposit

the compensation amount along with interest. Being

aggrieved, this appeal has been filed.

6. Sri Lokesh Malavalli, the learned counsel

for the claimants has raised the following contentions:

Firstly, the claimants claim that the deceased

was earning Rs.20,000/- per month by working as a

security guard. To that effect claimants have

produced Ex.P9 - Employment and Wage Details of

the deceased employers wage details of the deceased

and the bank statement as per Ex.P14. But the

Tribunal has assessed the notional income of the

deceased as only Rs.9,000/- per month.

secondly, the compensation awarded by the

Tribunal under the conventional heads is on the lower

side. Hence, he prays for allowing the appeal.

7. On the other hand, Sri Jwala Kumar, the

learned counsel for the Insurance Company has raised

the following counter-contentions:

Firstly, even though the claimants claim that the

deceased was earning Rs.20,000/- per month and

produced the Ex.P9 Employment and wage details of

the deceased and bank statement as per Ex.P14, the

same is not established by the claimants by adducing

evidence of the employer. Therefore, the Tribunal has

rightly assessed the notional income as Rs.9,000/- per

month. Therefore, the Tribunal has rightly assessed

the income of the deceased notionally.

Secondly, on appreciation of oral and

documentary evidence and considering the age and

avocation of the deceased, the overall compensation

awarded by the Tribunal is just and reasonable.

Thirdly, in view of the law laid down by a

Division Bench of this Court in the case of

MS.JOYEETA BOSE AND OTHERS vs.

VENKATESHAN.V AND OTHERS (MFA 5896/2018

and connected matters disposed of on

24.8.2020), the rate of interest awarded by the

Tribunal at 9% p.a. is on the higher side. Hence, he

sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award.

9. It is not in dispute that deceased Prabhakar

died in the road traffic accident occurred due to rash

and negligent driving of the offending vehicle by its

driver.

The claimants claim that deceased was earning

Rs.20,000/- per month and produced the salary

certificate as per Ex.P9 and bank statement as per

Ex.P14. But they have not examined the employer.

In the absence of proof of income, the notional income

has to be assessed. As per the guidelines issued by

the Karnataka State Legal Services Authority, for the

accident taken place in the year 2018, the notional

income of the deceased has to be taken at

Rs.12,500/- p.m. To the aforesaid income, 10% has

to be added on account of future prospects in view of

the law laid down by the Constitution Bench of the

Supreme Court in NATIONAL INSURANCE CO. LTD.

vs. PRANAY SETHI AND OTHERS reported in AIR

2017 SC 5157,. Thus, the monthly income comes to

Rs.13,750/-. The Tribunal has rightly deducted 50%

of the income of the deceased towards personal

expenses and remaining amount, i.e., Rs.6,875/- has

to be taken as his contribution to the family,

Rs.6,875/-. The deceased was aged about 60 years at

the time of the accident and multiplier applicable to

his age group is '9'. Thus, the claimants are entitled

to compensation of Rs.7,42,500/- (Rs.6,875*12*9)

on account of 'loss of dependency'.

The compensation awarded by the Tribunal

under the other heads is just and reasonable.

10. In the result, the appeal is allowed in part.

The judgment of the Claims Tribunal is modified.

The claimants are entitled to a total

compensation of Rs.8,52,500/- as against

Rs.6,45,000/- awarded by the Tribunal.

In view of the law laid down by a Division Bench

of this Court in JOYEETA BOSE (supra) the

enhanced compensation carries interest @ 6% p.a.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 9%

p.a. (interest @ 6% p.a. on the enhanced

compensation) from the date of filing of the claim

petition till the date of realization, within a period of

six weeks from the date of receipt of copy of this

judgment.

Sd/-

JUDGE

Cm/-